Citation Nr: 1707520
Decision Date: 03/10/17 Archive Date: 03/17/17
DOCKET NO. 08-18 558 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disease or injury.
2. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Hoopengardner, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1949 to February 1950.
These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2008 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
In November 2010, the Board remanded the Veteran's TDIU claim. In November 2013, the Board denied the Veteran's service connection and TDIU claims. In a September 2014 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated the November 2013 Board decision and remanded the Veteran's claims for further proceedings. The Board subsequently remanded the Veteran's claims in January 2015 and May 2016.
With respect to his TDIU claim, the Veteran requested a Board hearing on his June 2008 VA Form 9, but subsequently withdrew this request in June 2010.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDINGS OF FACT
1. An acquired psychiatric disorder was not manifest during active service and is not related to active service.
2. An acquired psychiatric disorder is not secondary (caused or aggravated) to service connected disability.
3. The Veteran's service connected disabilities do not render him unable to secure or follow a substantially gainful occupation.
CONCLUSIONS OF LAW
1. An acquired psychiatric disorder was not incurred in or aggravated by active service and is not proximately due to or a result of or aggravated by a service-connected disease or injury. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016).
2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duty to Notify and Assist
VA has a duty to notify and duty to assist a Veteran in the claims process.
The Veteran was provided with adequate notice in January 2008 and December 2010 letters, prior to the April 2008 and August 2012 rating decisions on appeal
The duty to assist includes assisting the Veteran in the procurement of relevant records. Of record, as relevant, are service treatment records (STRs) and private medical records.
The Board notes that no VA treatment records are of record. Evidence of record, however, referenced such records. For example, the September 2016 VA opinion quoted December 2006 VA treatment records and a January 2008 VA treatment record. As will be outlined below, the Veteran's service connection claim is being denied because an acquired psychiatric disorder is not related to active service and is not secondary to service-connected disabilities. The Veteran has not asserted that VA treatment records contain information relevant to these issues and additionally the March 2015 VA examination report stated that the "Veteran has never received any mental health treatment." With respect to the TDIU claim, as will be outlined below, this is being denied because the Veteran's service connected disabilities do not render him unable to secure or follow a substantially gainful occupation. The Veteran has not asserted that VA treatment records contain information relevant to this issue. As any outstanding VA treatment records would likely not address the reasons for denial of the claims on appeal, remanding to obtain any such records would likely be of no benefit to the Veteran and is therefore not necessary. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).
The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4) (2016). In this case, the Veteran was provided with multiple VA examinations and multiple VA opinions were obtained, which will be addressed in detail below. Upon review, the Board finds these VA examination reports and VA opinions to be thorough, complete and sufficient bases upon which to reach a decision on the issues on appeal. See Rodriguez-Nieves v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007).
As noted in the Introduction, the issues on appeal were previously remanded by the Board in November 2010, January 2015 and May 2016 and the Board finds that there has been substantial compliance with the relevant remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). With respect to the November 2010 Board remand, action was taken regarding entitlement to service connection for depression (this claim was adjudicated and is on appeal), a supplemental VA opinion was obtain in January 2011 that addressed the Veteran's service-connected disabilities and "whether the effect of such disabilities...are sufficient to render him unable to follow a substantially gainful occupation" and a determination was made as to whether an evaluation was warranted for frontal bone deformity (this was granted), as requested. With respect to the January 2015 and May 2016 Board remands, the requested VA opinion addressing the issue of secondary service connection were obtained in March 2015, June 2015 and September 2016 VA opinions.
In conclusion, VA has met all statutory and regulatory notice and duty to assist provisions with respect to the issues on appeal.
II. Service Connection for an Acquired Psychiatric Disorder
Legal Criteria
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016).
Generally, in order to establish direct service connection, three elements must be established. These elements are: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service," which is often referenced as the "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has chronically worsened the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2016); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).
Evidence and Analysis
The Veteran is service connected for residuals of removal bilateral osteoma frontal sinusitis, missing anterior table of the frontal sinus; residuals of removal bilateral osteoma frontal sinuses, pansinusitis; and disfigurement, frontal head deformity.
The Veteran's STRs did not show that the Veteran had any psychiatric complaints. A February 1950 discharge examination report noted that there were no significant psychiatric abnormalities and no personality deviation, noted no relevant defects or diagnoses and noted that the Veteran was qualified for discharge. On a November 1951 Report of Medical History form (for the Air Force Reserves), the Veteran denied ever having or having now nervous trouble of any sort or depressive or excessive worry.
A January 22, 2008 private medical record from Dr. B. included an assessment of depression and appeared to reference a trial of medication, with no additional information provided.
A January 29, 2008 VA general medical examination report noted that the Veteran denied any psychological complaints.
An April 2009 VA general medical examination report noted that the during the Veteran's first year after active service "he had about 11 different jobs. At that time, also had an alcohol problem for the succeeding 24 years."
Private treatment records from Dr. M., dated in 2009 and 2010, referenced an adjustment disorder with depressed mood (also listed as adjustment reaction with brief depression). A long-term history of symptoms was noted in December 2009.
The Veteran was afforded a VA examination in February 2011 VA with a psychologist and a mental disorders examination report was completed. The examination report noted that the Veteran "drank 1 [time a] week after age 14; 10-12 drinks" and that he quit drinking in 1986. It was noted that the Veteran "[a]ttributes depression to claustrophobia." It was noted that the Veteran reported that his "depression [symptoms] began in his early 60's, and he has no idea what to attribute it to. Began to be irritable a few times per month in a way that was unexpected for him." It was also noted that the Veteran reported that his "wife has heart problems that are significant; she has had both knees replaced and a hip replaced; and he is her primary caregiver. Says that her health problems began in her 60's. This is the same time frame of the onset of his depressed moods." A diagnosis was provided of depression, not otherwise specified. An opinion was provided stating that "[d]epression is most likely caused by or a result of caregiver stress; [Veteran's symptoms] began when his wife began having health problems and worsened as her health became impaired and after he retired" and that "[h]e himself does not attribute his depression to his [history] of osteoma today." The opinion concluded that "[t]here is no evidence that [V]eteran's mood difficulties are in any way related to his military service."
As noted, the Board denied the Veteran's claims in November 2013 and the Veteran appealed this decision to the Court. In a September 2014 Memorandum Decision, the Court stated that the February 2011 VA opinion "did not explicitly opine on secondary aggravation and the Board failed to determine with sufficient explanation whether a medical opinion as to secondary aggravation was required and, if so, whether the examiner sufficiently addressed the aggravation issue." Subsequently, the Board remanded the Veteran's claim in January 2015 and May 2016 to, essentially, obtain a VA opinion that adequately addressed the issue of secondary service connection. As noted above and as will be outlined below, adequate VA opinions were obtained addressing secondary service connection and the Board accordingly finds that the deficiencies identified in the September 2014 Memorandum Decision have been adequately addressed.
The Veteran was afforded a VA examination in March 2015 with a psychologist and a Mental Disorders Disability Benefits Questionnaire (DBQ) was completed. A diagnosis was provided of unspecified depressive disorder. The DBQ stated that the "Veteran informed that he was unsure of when depression started, but in the past he stated it started in his early 60's when his wife's health deteriorated and he has 'no idea what to attribute it (depression) to'." The DBQ also stated "'I've never had any problems from the head injury.' However, his son-in-law believes depression began after the [V]eteran suffered a head injury in the military yet the [V]eteran has hit his head on another occasion and suffered from a severe illness." The DBQ also stated that "Veteran stated in the past that he was his wife's caregiver...However, upon clarification, [V]eteran informed that he ties her shoes for her everyday and gets her a cup of coffee if she requests one otherwise she leaves the house at 10AM...and returns at 10PM" and that "[i]t has also become apparent that the [V]eteran's daughter is the caregiver to the [V]eteran and his wife."
The DBQ included an opinion stating that:
Symptoms of depression are less likely than not caused by or a result of his service-connected conditions (i.e., FACIAL SCARS, LOSS OF PART OF SKULL, SINUSITIS) given that the [V]eteran is unsure of when depression first started, unsure of any contributing factors ("I've never had any problems from the head injury."), has maintained gainful employment until retirement age, has never received any mental health treatment, has exhibited behavioral problems during childhood, has a history of alcohol abuse, and has a history of assaulting people.
A June 2015 addendum VA opinion was provided by the psychologist who completed the March 2015 VA examination and DBQ. The opinion stated that "[t]he [V]eteran's [service-connected] conditions (scars, sinusitis, loss of part of skull) have not aggravated the [V]eteran's psychiatric condition." In apparent support of this opinion, the examiner quoted the March 2015 and February 2011 VA opinions, which were discussed above.
In May 2016, the Board discussed the June 2015 VA opinion, noted that no rationale was provided as to the aggravation opinion and remanded the Veteran's claim to obtain an addendum VA opinion, with supporting rationale, as to the issue of aggravation. A VA opinion was provided in September 2016 from the same psychologist who completed the March 2015 VA examination and DBQ and provided the June 2015 addendum VA opinion. An opinion was provided stating that "[s]ymptoms of depression are NOT caused by, a result of, NOR aggravated by ANY service-connected disabilities." In support of this opinion, the psychologist referenced "the fact that the [V]eteran is unsure of when symptoms of depression first started," that "he is unsure of any contributing factors," that "[h]e stated in his ENT [VA examinations] that he 'has not had significant problems related to his sinuses for 50 years'" (the Board notes that this was an apparent mistaken reference to the January 2008 VA ENT note quoted in the opinion), that "he has maintained gainful employment until retirement age, maintained friendships until all of his friends passed away, and has never received any mental health treatment." The psychologist further stated that "after reviewing the file for a third time, it became apparent that the [V]eteran's symptoms of depression do not cause any clinically significant distress or impairment in social, occupational, or other important areas of functioning" and that "[t]herefore both diagnoses of depression ([VA examinations] in 2011 & 2015) are in error."
The psychologist also quoted from "[r]elevant CPRS data used for the rationale." Referenced evidence included a November 2007 VA ENT examination report, an April 2009 VA ENT examination report, a January 2011 VA opinion and the February 2011 VA mental disorders examination report. Also referenced (which as noted above are not of record) was VA treatment records in December 2006 and January 2008. One of the December 2006 VA treatment record stated that the Veteran "denied loss of interest in usually pleasurable things or feelings of sadness and hopelessness." The January 2008 VA treatment record was an ENT consult that stated in part that the Veteran "has not had significant problems related to his sinuses for 50 years."
Upon review of the evidence of record, the Board concludes that entitlement to service connection is not warranted for an acquired psychiatric disorder.
With respect to direct service connection, as noted, the Veteran's STRs did not show that the Veteran had any psychiatric complaints and a February 1950 discharge examination report noted that there were no significant psychiatric abnormalities and no personality deviation, noted no relevant defects or diagnoses and noted that the Veteran was qualified for discharge. In addition, on a November 1951 Report of Medical History form (for the Air Force Reserves), the Veteran denied ever having or having now nervous trouble of any sort or depressive or excessive worry. This contemporaneous evidence indicates that an acquired psychiatric disorder was not manifest during service or shortly thereafter and the Board finds this contemporaneous evidence to be highly probative. In addition, a February 2011 VA opinion stated that "[t]here is no evidence that [V]eteran's mood difficulties are in any way related to his military service." This opinion, provided by a psychologist, was supported by a valid rationale, as outlined above. The Board finds this negative opinion to be the highly probative and to be the most probative evidence of record as to the issue of whether an acquired psychiatric disorder is related to the Veteran's active service.
The Board has considered the Veteran's (and his representative's) contentions. In this regard, the Veteran reported in various statements that he had been depressed since the end of his active service in 1950. For example, in a July 2007 statement, the Veteran stated that "[m]y parents were very concerned about my erratic behavior when I got home in 1950. I did have problems with alcohol in my life from that time until about 15 years ago." In an August 2009 statement, the Veteran stated that "I started having the [d]epression when I got out in 1950" and "I was drinking because of my depression." In his September 2012 notice of disagreement, the Veteran stated "I would like to ask why does me being a caregiver, have any bearing on my depression, which I have had for over many years (1950's)." On his May 2013 VA Form 9, the Veteran stated "I have suffered from depression, since I left the service in 1950, regardless of what the VA argument says," that "VA argues that taking care of my wife has caused the depression or that somehow my retirement has caused the problem, but only I can know when it actually began" and that "the above things has probably contributed to my depression being made worse, but they absolutely did not cause the depression. I say again, it started after I got out of the Air Force in 1950."
In contrast to the Veteran's statements, as noted, a February 1950 discharge examination report noted that there were no significant psychiatric abnormalities and no personality deviation and on a November 1951 Report of Medical History form (for the Air Force Reserves), the Veteran denied ever having or having now nervous trouble of any sort or depressive or excessive worry. As such, these contemporaneous STRs are in contrast to the Veteran's later statements indicating a continuity of mental health symptomatology since his active service. The Board finds the contemporaneous STRs to be more probative as to whether mental health symptoms existed at that time than the later reports by the Veteran. As the Veteran's more recent statements are in contrast with the more probative contemporaneous STRs, the Board finds that the Veteran's statements indicating a continuity of mental health symptomatology since his active service to be not credible. Additionally, as noted above, the Veteran reported at the February 2011 VA examination that his "depression [symptoms] began in his early 60's" and that at the March 2015 VA examination the "Veteran informed that he was unsure of when depression started." These reports are inconsistent with the Veteran's other statements indicating a continuity of mental health symptomatology since his active service and further damage the credibility of the Veteran's reports as to the onset of such symptoms.
To the extent that the Veteran (or his representative's or his son-in-law's) statements can be taken to relate an acquired psychiatric disorder to the Veteran's active service, the Board finds that the Veteran is not competent to address this etiological issue, as this is a complex medical question beyond the competence of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Veteran has not stated that a competent medical professional had stated that such an etiological relationship existed. In other words, there are no Jandreau type exceptions. Overall, the Board finds the negative February 2011 VA opinion provided by a psychologist to be of significantly more probative value than the Veteran's (and other) lay statements as to the issue of whether an acquired psychiatric disorder is related to the Veteran's active service. Additionally, the Board notes that there is no competent opinion contrary to the February 2011 VA opinion's conclusion.
As such, the Board finds that entitlement to service connection for an acquired psychiatric disorder is not warranted on a direct basis.
The Board additionally finds that entitlement to service connection for an acquired psychiatric disorder is not warranted on a secondary basis. As noted above, the Veteran is service connected for three disabilities. The determinative issue is whether an acquired psychiatric disorder is secondary (caused or aggravated) to these disabilities. As to this issue, as referenced above, various VA opinions were obtained. The Veteran was afforded a VA examination in March 2015 with a psychologist, who subsequently provided an opinion in the March 2015 DBQ that "[s]ymptoms of depression are less likely than not caused by or a result of his service-connected conditions." Addendum opinions were provided in June 2015 and September 2016 from the same psychologist that addressed the issue of aggravation, with the psychologist stating in the September 2016 opinion that "[s]ymptoms of depression are NOT caused by, a result of, NOR aggravated by ANY service-connected disabilities." The psychologist's opinions were supported by valid rationales, as outlined above. The Board finds the negative March 2015 and September 2016 VA opinions to be the highly probative and to be the most probative evidence of record as to the issue of whether an acquired psychiatric disorder is secondary (caused or aggravated) to service connected disability.
To the extent that the Veteran (or his representative's) statements indicate that an acquired psychiatric disorder is secondary (caused or aggravated) to service connected disability, the Board finds that the Veteran is not competent to address this etiological issue, as this is a complex medical question beyond the competence of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Veteran has not stated that a competent medical professional had stated that such an etiological relationship existed. In other words, there are no Jandreau type exceptions. Overall, the Board finds the negative VA opinions provided by the same psychologist in March 2015 and September 2016 to be of significantly more probative value than the Veteran's (and other) lay statements as to the issue of whether the an acquired psychiatric disorder is secondary (caused or aggravated) to service connected disability. Additionally, the Board notes that there is no competent opinion contrary to the March 2015 and September 2016 VA opinion's conclusions.
In sum, the Board finds that an acquired psychiatric disorder was not manifest during active service and is not related to active service and that an acquired psychiatric disorder is not secondary (caused or aggravated) to service connected disability. As such, the Board concludes that an acquired psychiatric disorder was not incurred in or aggravated by active service and is not proximately due to or a result of or aggravated by a service-connected disease or injury and to this extent the Veteran's claim must therefore be denied. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016).
III. Entitlement to a TDIU
Legal Criteria
A schedular TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability rated at least 60 percent or multiple service-connected disabilities with a combined rating of at least 70 percent (with at least one of those disabilities rated at least 40 percent). See 38 C.F.R. § 4.16(a) (2016).
Evidence and Analysis
In this case, the Veteran is service-connected for three disabilities: residuals of removal bilateral osteoma frontal sinusitis, missing anterior table of the frontal sinus, which has been assigned a 50 percent disability rating from July 2007; residuals of removal bilateral osteoma frontal sinuses, pansinusitis, which has been assigned a 30 percent disability rating from July 2007; and disfigurement, frontal head deformity, which has been assigned a 30 percent disability rating from July 2007. From July 2007, the Veteran's combined disability rating has been 80 percent. Pursuant to the percentage requirements outlined above, the Veteran meets the threshold requirements for a schedular TDIU throughout the appeal period, as his combined disability rating is at least 70 percent and at least one of his service-connected disabilities is rated at least 40 percent.
The Veteran submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in December 2007. The Veteran noted that his service-connected "sinus/osteoma/pansinusitis" prevented him from securing or following any substantially gainful occupation. The Veteran reported that he last worked full time, became too disabled to work and that his disability affected his full time employment in June 2004. The Veteran listed employment as a driver from 1994 to 2004 and that he worked 60 hours per week and lost no time from illness during this time. The Veteran reported that he left his last job because of his disability and that he had not tried to obtain employment since he became too disabled to work. The Veteran reported three years of high school education and other education or training was noted of "General Motors Training Center" that was completed in 1960.
The Veteran also submitted a VA Form 21-8940 in September 2012. The Veteran referenced his service-connected disabilities rated at 80 percent as preventing him from securing or following any substantially gainful occupation. The Veteran reported that he last worked full time, became too disabled to work and that his disability affected his full time employment in 2004. The Veteran listed employment as a truck driver from 1993 to 2004 and that he worked 40 hours per week and lost "10" time from illness during this time. The Veteran reported that he left his last job because of his disability and that he had not tried to obtain employment since he became too disabled to work. The Veteran reported four years of high school education and no other education or training.
Of record is a February 2008 VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) from the Veteran's employer from 1994 to 2004. In response to an item about time lost during 12 months preceding last date of employment due to disability, "n/a" was noted. The type of work performed was reported as truck driver. The reason for the Veteran to not be working was noted as retired. An August 2008 letter from the same employer stated that the Veteran was an employee from 1994 to 2004, that he worked "an average of 40+ hours per week, 52 weeks per year" and that the Veteran "was on a Family Medical Leave from July [] 2004 until September [] 2004. During this time [the Veteran] was receiving Short term Disability." The Board notes that an April 2009 response to a VA request for Social Security records noted that there were no medical records and that a June 2009 note in VBMS (under the Notes tab) noted that the Veteran called to report that he did not receive Social Security disability.
The Veteran was afforded a VA Nose, Sinus, Larynx and Pharynx examination in November 2007. The examination report stated that the Veteran "indicated a long history of chronic post-nasal drainage and nasal congestion and also a cough. He indicated that he blows his nose frequently." It was also noted that "[w]henever he has a sinus infection he ignores his symptoms and does not receive antibiotics. Therefore, it would be difficult, if not impossible, to determine how often he is having incapacitating episodes of sinusitis since he apparently ignores his symptoms." Upon examination, the examiner noted a "very significant defect in [the Veteran's] forehead which is very noticeable," "significant nasal septal deviation to the right side" and "approximately 30 to 40 percent nasal obstruction present on the right side." Diagnoses were noted of chronic pansinusitis and deviation of nasal septum. The examiner stated that "[a]lthough [the Veteran] did not describe a problem with recurrent sinus infections, it should be noted that he has evidence of significant chronic sinusitis evident on CT."
The Veteran was afforded a VA general examination in January 2008. The examination noted various jobs that the Veteran had following his active service, to include sheet metal worker, pipeline construction, driving bulldozers, automobile mechanic, chauffeur and oil field pumper. It was noted that he did truck driving from 1985 to 2004. An impression stated that "[n]one of the [V]eteran's medical conditions interfere with his ability to be employed."
The Veteran was afforded a VA general examination in April 2009. A work history was noted that was similar to that noted in the January 2008 VA general examination report. It was noted that the "[V]et[eran] went to work driving a truck steadily from 1985 to 2004 and then had to retire." It was noted upon physical examination that the Veteran had "obvious frontal bone deformity with some depression." A diagnosis was noted, as relevant, of osteotomy and sinus treatment. The examiner stated that "[n]o current medical conditions noted on general medical exam that would interfere with [V]eteran's ability to be employed at this time."
The Veteran was afforded a VA Nose, Sinus, Larynx and Pharynx examination in April 2009. The examination reported stated that "[t]he [V]eteran indicated that he continues to have chronic postnasal drainage and nasal congestion, although he does not complain and tends to ignore his symptoms. He did state that he blows his nose frequently. Pain is not an issue." It was also noted that "[o]ver the past year he indicated that he has not had an antibiotic and apparently has not had incapacitating episodes of chronic sinusitis." It was noted that "[t]he [V]eteran said that he retired in September 2004 as a truck driver. He said that he was a long-haul truck driver and had a problem lifting heavy items and said that he was forced to retire because of problems related to heavy lifting." Upon physical examination, it was noted that there was "significant defect involving the fontal bone with a very significant amount of bone missing (essentially 50% of the anterior table)," that there was "significant nasal septal deviation of the right side with some swelling" and that "approximately 40-50% nasal obstruction present involving the right side."
The examiner also referenced "an additional evaluation" in the VA ENT clinic and stated that "[s]ince the [V]eteran did not describe significant symptoms related to frontal pain, severe headaches, swelling, or erythema, and [] had no significant problems related to his sinuses for 50 years, it was determined that he should be observed expectantly and that surgical intervention would be inappropriate." The Board notes that the September 2016 VA opinion quoted from a January 2008 VA ENT note that appears to be the note cited by the April 2009 VA Nose, Sinus, Larynx and Pharynx examination report. The September 2016 VA opinion quoted this note as stating that the Veteran "reports occasional nasal congestion, but denies chronic infection, headaches, or pain. He reports approximately one URI per year and states he has gone years without a cold" and that the Veteran "has not had significant problems related to his sinuses for 50 years." The February 2011 VA mental examination report also quoted the January 2008 VA ENT note as stating that "[a]lthough the [Veteran] does have some minor symptoms related to rhinitis he denies significant symptoms."
The April 2009 VA Nose, Sinus, Larynx and Pharynx examination report noted a diagnosis of chronic sinusitis and loss of part of skull. An opinion was provided stating that "[a]lthough the [V]eteran has chronic sinusitis and is missing a significant part of his frontal bone, neither of these issues would make him unemployable, so that his service-connected disabilities for which I am currently evaluating this [Veteran] today would not make him unemployable or affect employability." The examiner also stated that "[h]owever, it should be noted that specific medical issues could certainly affect employability."
A January 2011 VA addendum opinion was provided by the same doctor who completed the April 2009 Nose, Sinus, Larynx and Pharynx examination (and also the November 2007 VA Nose, Sinus, Larynx and Pharynx examination). The doctor noted that he reviewed the Veteran's claims folder again and that "[a]t the time of my last ENT [examination in April 2009], I stated that none of the issues for which I evaluated this [V]eteran would make him unemployable. I would have nothing else to add to what I previously said regarding employability."
A February 2011 VA mental examination report noted an education of 11th grade. It was also noted that the Veteran's occupation was "truck driver, heavy equipment operator" and that he "[r]etired in 6/04; attributes to health problems that have now resolved." In response to a question of "[i]f unemployed, does veteran contend this is due to effects of mental disorder," it was noted that "no; retired by choice."
The Veteran was afforded a VA examination in December 2011 and a Scars/Disfigurement DBQ was completed. A diagnosis was noted of "frontal head deformity but no true scar." It was noted that no scar of the head was painful or unstable. The disfigurement was noted to be two inches long by one inch wide and depressed 1.5-2 centimeters. It was noted that surface contour was depressed on palpation. Abnormal pigmentation, gross distortion or asymmetry of facial features or visible or palpable tissue loss were not noted. It was noted that the disfigurement did not result in limitation of function. It was also noted that the Veteran's disfigurement did not impact his ability to work.
A March 2015 Mental Disorders DBQ noted a similar work history as reported elsewhere in the record and stated that the "Veteran retired in June of 2006 due to medical problems that have since been resolved and has not submitted any employment applications since then."
The Board notes that the December 2007 rating decision that assigned a 50 percent disability rating for residuals of removal bilateral osteoma frontal sinusitis, missing anterior table of the frontal sinus, stated that "[t]he findings regarding missing anterior table of the frontal sinus are consistent with an evaluation of 50 percent because the medical evidence appropriately reflects the disabling extent of this condition" and referenced a 50 percent disability rating as warranted when there is skull loss without brain hernia over an area larger than a specified size. This rating decision also assigned a 30 percent disability rating for residuals of removal bilateral osteoma frontal sinuses, pansinusitis, and stated that "[t]he evidence indicates more than six-non incapacitating episodes per year of sinusitis characterized by purulent discharge." The August 2012 rating decision that assigned a 30 percent disability rating for disfigurement, frontal head deformity, stated that this was assigned based on two characteristics of disfigurement, specifically the size of the scar being at least a specified size and surface contour being elevated or depressed on palpation.
Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities do not render him to unable secure or follow a substantially gainful occupation.
As noted, the January 2008 VA general examination report stated that "[n]one of the [V]eteran's medical conditions interfere with his ability to be employed," the April 2009 VA general examination report stated that "[n]o current medical conditions noted on general medical exam that would interfere with [V]eteran's ability to be employed at this time," the April 2009 VA Nose, Sinus, Larynx and Pharynx examination stated that "[a]lthough the [V]eteran has chronic sinusitis and is missing a significant part of his frontal bone, neither of these issues would make him unemployable, so that his service-connected disabilities for which I am currently evaluating this [Veteran] today would not make him unemployable or affect employability," a January 2011 VA addendum opinion referenced the April 2009 VA opinion quoted and stated that "I would have nothing else to add to what I previously said regarding employability" and a December 2011 VA Scars/Disfigurement DBQ noted that the Veteran's disfigurement did not impact his ability to work. While the Board acknowledges that the ultimate TDIU determination rests with VA and not a medical examiner, the Board finds the medical opinions referenced above to be probative evidence as to the issue on appeal. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). These multiple medical opinions provide probative evidence that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation.
Further, the symptomatology of the Veteran's service-connected disabilities, outlined in detail above, also is not of such severity to render him unable to secure or follow a substantially gainful occupation. Such symptomatology included chronic post-nasal drainage, nasal congestion, coughing and frequent nose blowing. The Board finds that these symptoms would not result in the Veteran being unable to secure or follow a substantially gainful occupation.
In addition, the Board notes that the Veteran is also service-connected for disfigurement of the frontal head and a November 2007 VA Nose, Sinus, Larynx and Pharynx examination reported noted a "very significant defect in [the] forehead which is very noticeable." The Veteran was afforded a specific VA examination in December 2011 to address this disability and a Scars/Disfigurement DBQ described the disfigurement and stated that the Veteran's disfigurement did not result in limitation of function and did not impact his ability to work. The DBQ also noted the date of diagnosis of the Veteran's deformity as 1949. Subsequent to the Veteran's separation from active service in 1950, he was able to work, to include most recently for over approximately 10 years with the same company as a truck driver. This indicates that his service-connected deformity is not of such severity to render him unable to secure or follow a substantially gainful occupation. In this regard, the Board acknowledges that in a December 2010 statement the Veteran stated that "in 1966 I tried to get a job driving for Grey Hound Bus Co. I was turned down because of my scars on my head and face. I had the driver qualification but my appearance just didn't fit in" and that "[f]rom then on, it limited the kind of work I could do." While acknowledging that the Veteran's service-connected disfigurement may have limited the jobs that he could do, the Veteran subsequently worked after 1966. In addition, the determinative issue in a TDIU claim is not whether a Veteran could not work in some jobs or whether he was limited in the jobs that he could do, but whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. As to this issue, the Board finds that evidence does not show that the Veteran's service-connected disfigurement would render him unable to secure or follow a substantially gainful occupation
The Board has considered the Veteran's (and his representative's) contentions. In an August 2009 statement, he stated that "I hope you...give me 100% Dis[a]bility" and in a December 2010 statement he stated that "I hope you see fit to give me 100% dis[a]bility I have asked for." While acknowledging the Veteran's contentions, the Board, however, has concluded differently on the basis of the facts of this case, as explained in detail above.
The Board acknowledges that the Veteran's service-connected disabilities have resulted in some level of occupational impairment. As noted, throughout the appeal period he has been assigned an 80 percent disability rating. In this regard, 38 C.F.R. § 4.1 (2016) provides that "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses." The assigned 80 percent disability rating therefore contemplates and compensates the Veteran for the resulting occupational impairment from his service-connected disabilities. While not discounting the Veteran's symptomatology, the evidence, however, does not indicate that he was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities.
Finally, as noted, the Board previously denied the Veteran's TDIU claim in November 2013 and the Court vacated this decision in a September 2014 Memorandum Decision. Litigation materials associated with that decision are of record and included a Brief of Appellant from the Veteran's representative at the Court. An argument raised by the Veteran's representative, but not addressed by the Court (which found that the TDIU claim was intertwined with the service connection claim addressed above and remanded the claim because the service connection claim was being remanded), was that "the Board committed prejudicial legal error by failing to ensure compliance with its prior remand order and relying on an inadequate medical opinion to deny entitlement to TDIU." The Veteran's representative noted that the November 2010 Board remand referenced the April 2009 VA Nose, Sinus, Larynx and Pharynx examination report and stated that "after stating that the Veteran's service-connected disabilities would not make him unemployable or affect employability, the sinus examiner then stated that, 'it should be noted that specific medical issues could certainly affect employability.' The meaning, of this statement is unclear and needs additional explanation" and that subsequently the Board remanded the Veteran's TDIU claim for an addendum opinion.
As noted above, an addendum opinion was obtained in January 2011 and the doctor noted that he reviewed the Veteran's claims folder again and that "[a]t the time of my last ENT [examination in April 2009], I stated that none of the issues for which I evaluated this [V]eteran would make him unemployable. I would have nothing else to add to what I previously said regarding employability." The Veteran's representative at the Court argued, essentially, that this opinion did not comply with the Board's November 2010 remand directives because no "additional explanation" was provided by the examiner.
The Board notes that the relevant November 2010 Board remand directive stated that the "examiner is asked to address the Veteran's service-connected disabilities...and determine whether the effect of such disabilities...are sufficient to render him unable to follow a substantially gainful occupation." The Board finds that the January 2011 VA opinion substantially complied with this specific directive in that an opinion was provided that reiterated a previously provided opinion stating that the issues that the examiner evaluated would not make the Veteran unemployable. This opinion responded to the relevant directive, as it addressed the request to address whether the Veteran's service-connected disabilities "are sufficient to render him unable to follow a substantially gainful occupation."
Moreover, as noted above, the ultimate TDIU determination rests with VA and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). As such, the opinion provided, while probative, is not controlling in this case. In addition, the Board notes that the Veteran's claim is being denied based on the entirety of the evidence of record, and not based solely on the April 2009 or January 2011 VA opinions. To the extent that the April 2009 VA opinion's statement of "it should be noted that specific medical issues could certainly affect employability" indicates that the Veteran's service-connected disabilities result in some level of occupational impairment, the Board has acknowledges such above. Overall, the Board has considered the argument raised by the Veteran's representative during litigation at the Court, but finds that there was substantial compliance with the November 2010 Board remand.
In sum, the Board finds that the Veteran's service connected disabilities do not render him unable to secure or follow a substantially gainful occupation. As such, the Board concludes that the criteria for entitlement to a TDIU have not been met and to this extent the Veteran's claim must therefore be denied. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).
ORDER
Entitlement to service connection for an acquired psychiatric disorder is denied.
Entitlement to a TDIU is denied.
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H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs